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Alaska judge overturns $500K award to man police Tasered more than 15 times

Suzanna Caldwell
Alaska Dispatch illustration

In the early hours after Christmas Day 2006, Thomas "Boya" Olson awoke in his rural Alaska home to find himself surrounded by police. What would transpire next has been a point of contention, but nobody disputes that police in the Western Alaska village of Hooper Bay used a Taser some 15 to 18 times to calm an agitated Olson -- shocking him so many times that he was left with scars and may be lucky to be alive.

The incident would lead to Olson suing the City of Hooper Bay, winning a favorable jury verdict and $500,000 in damages in April. But now an Alaska Superior Court judge has overturned the verdict. And the case, which has already been reviewed once by the Alaska Supreme Court, may be headed back to the high court.

As was true when Olson first sued, the case turns on whether Hooper Bay police officers used excessive force. In Alaska, however, there isn't much case law to turn to when it comes to police deploying Tasers -- an electroshock weapon that unleashes 50,000 volts, disrupting voluntary control of a person's muscles. While some have heralded Tasers as an ideal alternative to lethal force, questions remain both in Alaska and nationally, stemming from overusing the weapon on potential suspects.

From the Yup'ik village of Hooper Bay to Alaska's urban center of Anchorage, police are more and more drawing their Tasers to combat unruly individuals. It's one alternative to using a gun. This past summer in Anchorage, many residents wondered why a police officer didn't carry a Taser and use it when encountering Shane Tasi. In early June, the 26-year-old father of four was shot and killed when he ignored an officer's request to drop a 4-foot-long stick. Anchorage Police Officer Boaz Gionson was cleared of any wrongdoing in a state investigation. He, like many in Anchorage's police force, was not issued a Taser at the time.

Yet, even when police turn to Tasers, the aftermath can leave a police department in a legal gray area, especially when officers use the weapons multiple times to subdue the individual. How many electroshocks can an officer deliver before it becomes excessive force? Were Hooper Bay police officers in the wrong for using their Taser up to 18 times on Olson?

In September, Bethel Judge Leonard Devaney, now a magistrate in Sitka, ruled that Hooper Bay police officers were entitled to immunity for their role in the 2006 incident, and thus the City of Hooper Bay does not have to pay Olson the half-million dollars in damages. In his ruling, Devaney noted the officers' behavior was reasonable and that while “not the Hooper Bay Police Department's finest hour,” they acted appropriately given the circumstances. Olson could now be required to pay attorney fees as a result of Devaney overturning the verdict.

Shocked into submission

So what did Olson allegedly do so wrong to require police to shock him with up to 900,000 volts?

It all started in the early hours after Christmas in 2006 in the Yupik village of Hooper Bay, a rural community of about 1,140 located about 25 miles south of Scammon Bay in the Yukon-Kuskokwim Delta. Olson, then 30 years old, and his partner, Suzanne Smith, had six children together and lived in the village.

Smith left the home for the evening to visit her mother, while Olson stayed behind watching over the couple's youngest four children, ranging in age from 1 month to 5 years old. According to court documents, Smith suspected Olson had been drinking and called Hooper Bay's police to check on him.

At about 4 a.m. on Dec. 26, 2006, two officers responded, where they found the door open to the arctic entry of the house, despite the temperature outside hovering around 5 degrees.

The officers entered the house and discovered Olson and his brother, Peter, asleep in the living room. They smelled alcohol and awoke Olson to see if he had been drinking.

As Olson woke up, he allegedly became aggressive, questioning why the officers were inside his house. One officer repeatedly asked Olson to stand up, which Olson, half asleep, had difficulty responding to, according to court documents. The officers handcuffed Olson for “safety reasons,” saying they were aware of his alleged combative history with police. An Alaska court records search shows Olson pleaded no contest to a robbery in 1995 and was found guilty of disorderly conduct just weeks before the Dec. 26 arrest.

In contrast, Olson testified that he knew the officers “had a bad reputation for violent and unnecessary behavior.”

Olson and his brother began to yell at the officers, accusing them of trespassing. The officers radioed for backup. Meantime, according to the narrative outlined in court documents, Olson told the officers, “You can get shot for trespassing.” An officer asked if Olson was threatening him. “No,” Olson told him. “I'm telling you.”

When a third officer arrived as backup, the three attempted to escort Olson from his home. What happened in the ensuing scuffle is confusing. Two of the officers fell to the floor with Olson, who was still in handcuffs. The officers said Olson kicked at them repeatedly, while Olson claimed he was trying only to stand up. Olson also attempted to bite one of the officers, a fact he did not dispute at trial.

Somewhere in the scuffle, Olson wrapped his legs around a support beam in the house. The officers told Olson to stop resisting, and when he didn't -- instead unleashing a stream of profanity -- they shot a Taser at him. Only one of the Taser's prongs hit Olson, who responded by teasing the officers, saying the shot “feels like a vibrator.” Officers warned Olson that if he didn't cooperate, they would “drive stun” him -- a maneuver that drives the Taser's prongs directly into the suspect, rather than shooting the prongs from afar.

The officers Tased Olson in rapid succession. Audio from the incident details the Tasers being deployed by the officers multiple times in a 50-second period. Olson, who clung to the beam in his house out of fear, was stunned multiple times, including on his back, thighs and collar bone. Each time he was Tased the muscles in legs responded involuntarily, he said. Officers thought those spasms were attempts by Olson to kick and resist arrest.

Finally, officers subdued Olson enough to roll him onto his stomach, where they Tased him at least two more times. By then, the confrontation had ended. Olson stood up and officers escorted him to Hooper Bay's police headquarters.

Olson was charged with five counts of reckless endangerment, three counts of assault of a police officer and resisting arrest. All criminal charges were later dropped.

Qualified immunity?

In 2008, Olson sued the City of Hooper Bay, along with the two of the officers involved in the Taser incident -- Dimitri Oaks, Charles Simon and Nathan Joseph -- for damages.

Judge Devaney ruled in favor of the city, saying the officers fell under “qualified immunity”-- a perplexing legal issue that has limited case law in Alaska. He also found the officers were in their right to deploy Tasers on Olson.

Michele Power, Olson's attorney, appealed the ruling, kicking the case up to the Alaska Supreme Court. The high court, however, threw the case back in Devaney's lap. While the Supreme Court agreed with Devaney's interpretation that officers were in their right to use Tasers on Olson initially, it questioned whether Tasing Olson when he was handcuffed and lying on his stomach was justified.

The case went to trial, where a Bethel jury this past April found the police officers' displayed excessive force and that Hooper Bay should pay Olson $500,000. During the trial, doctors presented evidence showing 25 Taser burns on Olson, which have left permanent scars, according to testimony from a doctor.

Tom Stenson, legal director of the American Civil Liberties Union of Alaska, wrote an amicus brief in the case, saying that Taser International, the manufacturer, issued a warning that repeated use on an individual can cause one's heart to stop. In all of the cases he'd researched, Stenson said in his brief, every one involving more than 10 Tasings was a manslaughter case.

"This is the only case I've found where the person survived after that much Tasering," Stenson told Alaska Dispatch earlier this year.

And yet, the legal battle wasn't over.

Judge Devaney reviewed the jury's verdict, and on Sept. 19 he overturned it.

He again cited qualified immunity, which shields those working for government from prosecution. In an interview with Alaska Dispatch, Stenson said Devaney is applying qualified immunity far too broadly in the Olson case. Because there's limited case law regarding the overuse of Tasers by police officers in Alaska, the judge can side with qualified immunity.

“It's a very broad doctrine, if you read it very strongly, you can throw almost any case out,” Stenson said.

Based on Olson's conduct, Devaney ruled the police acted appropriately. While other options might have prevented the excessive Tasing -- such as using a pepper spray or a baton -- officers were justified in their actions, the judge wrote in his ruling.

“Monday morning quarter-backing is an easy thing to do; we are not the one the lineman is after; we are not the one releasing the ball too quickly because of the throbbing pain from that last hit,” Devaney wrote. “And so it was for the officers.”

But it also appears Devaney has taken issue with Olson's lawyers for somehow playing to the jury's emotions: “In cases of this type, (defense) counsel must be vigilant and take pains to avoid and prevent naked appeals to the emotions of the jury in order to keep the ultimate verdict from being infected by passion and prejudice."

Power disagrees with that statement and is planning to appeal the verdict to the Supreme Court yet this week.

“We think it was an abuse of (the judge's) discretion to take the verdict away from the jury,” Power said.

Myron Angstman, the lawyer representing the City of Hooper Bay, called the judgment a victory, but refused to elaborate on the case.

Contact Suzanna Caldwell at suzanna(at)alaskadispatch.com